Home and dry - at last

In our recent blog Right you are we considered whether the recent judgment of the European Court of Human Rights (ECtHR) in the case of Kay v UK meant that, in a possession claim taken by a public authority which had an apparently absolute right to possession, a defendant could seek to rely on Article 8 of the European Convention on Human Rights ( ‘the Convention’) – the right to respect for home and private and family life - as a defence. The judgment of the Supreme Court (SC) on 3^rd November 2010 in the case of Pinnock v Manchester City Council [2010] UKSC 45 seems to have answered that question once and for all.

Mr Pinnock had been the secure tenant of Manchester City Council (MCC) since 1978. A local authority tenant of a house or flat is a ‘secure tenant’ for the purposes of the Housing Act (HA) 1985 and, in most cases, a possession order can only be obtained against a secure tenant under the HA 1985 if a ground of possession is proved to the satisfaction of the court and if the court considers it reasonable to grant such a possession order.

Mr Pinnock lived with his partner, Ms Walker, and, from time to time, with all or some of their five children. Possession action was taken by MCC due to allegations of anti-social behaviour made against Ms Walker and the children.

In June 2007 the judge found a large number of the allegations to be well founded and made a demotion order. HA 1985 s82A (inserted by the Anti-social Behaviour Act 2003) also now gives the court power to make a ‘demotion order’ and thus create a ‘demoted tenancy’ where the tenant has engaged, or has threatened to engage, in ‘housing-related anti-social conduct’ or in conduct which consists of or involves using the ‘premises for unlawful purposes’ and it is reasonable to make the order. A demoted tenancy lasts for a year unless the landlord brings possession proceedings within that year. 

Within the following year MCC took further possession action due to further allegations against two of the adult children. A possession order was made. Mr Pinnock appealed to the Court of Appeal who dismissed his appeal. He then appealed to the SC. A nine member panel of judges was formed to hear his appeal because it involved a challenge to previous House of Lords (HoL) judgments on the question whether a defendant could raise a defence under Article 8 in possession proceedings brought by a public authority.

The SC examined these HoL judgments and also a number of ECtHR judgments on the same issue. Lord Neuberger gave judgment with which the whole panel agreed.

Lord Neuberger summarised the propositions established by the ECtHR judgments (in para 45 of his judgement) as follows :

“(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end…

(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e. one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues…

(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion remains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.

Although it cannot be described as a point of principle, it seems that the [ECtHR] has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain…”

Lord Neuberger summed up the importance of the ECtHR line of judgments as follows:

“Where…there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line…

Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact” (paras 48 & 49). 

All this applies to public authorities. With regard to private landlords or private landowners, Lord Neuberger stated:

“[I]t is preferable for this Court to express no view on the issue until it arises and has to be determined” (para 50).

Interestingly,  Lord Bingham, giving the minority judgment in the HoL case of Kay v Lambeth LBC, and the EctHR, giving judgment in McCann v UK had suggested that an Article 8 defence would only be relevant in “exceptional cases.” On this point, Lord Neuberger stated:

“[I]t seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide…” (para 51).

Expanding on this, at para 52 he stated:

“We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing.”

 On this point about exceptionality, Lord Neuberger concluded (at para 54) that :

“Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.” 

With regard to the effect on the management of day to day cases, Lord Neuberger stated:

“The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court” (para 57). 

There will inevitably be scope for argument as to whether the eviction of a Gypsy or Traveller from an unauthorised encampment involves that person’s ‘home’ at all – it could be said that if they have not been on the land in question for very long then it cannot be their ‘home’ (see, for example, Price v Leeds CC, the case heard with Kay v Lambeth LBC). However it can be argued that the caravan is the ‘home’ for the purposes of article 8. It can also be argued that ‘private and family life’ must come into play.

We have drawn 6 general points from the Pinnock judgment:

1. “[I]t is only where a person’s ‘home’ is under threat that article 8 comes into play and there may be cases where it is open to argument whether the premises involved are the defendant’s home” (para 61).

Comment: see our discussion above.

1. “[A]s a general rule, article 8 need only be considered by the court if it is raised by or on behalf of the residential occupier” (para 61).

Comment: so it is for the Gypsy or Traveller concerned to raise article 8 in their defence.

1. “[I]f an article 8 point is raised, the court should initially consider it summarily, and if, as no doubt will often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained” (para 61).

Comment: most initial possession hearings in such cases are given very short periods of time to be heard (typically no more than fifteen minutes). Basically, the SC are suggesting that this will be sufficient in most instances even where the defendant raises article 8 as a defence.

1. “[I]f domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases,  justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether” (para 62).

Comment: The previous Court of Appeal case of McPhail v Persons Unknown  had established a principle that the court could not suspend a possession order against a trespasser (unless the landowner or former landlord agreed to such suspension). The SC have effectively disposed of what had become known as ‘the rule in McPhail’ (though see below). In terms of unauthorised encampment cases, this means that when, for example, a Gypsy or Traveller is very unwell or is about to give birth, an application can be made to suspend the enforcement of any possession order. This is an extremely important advance in the law in this area.

1. “[T]he conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited. For example…some of the provisions of [Civil Procedure Rules] 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent…” (para 63).

Comment: strictly speaking , therefore, the SC are not formally overturning the rule in McPhail but it is difficult to see how that ‘rule’ can survive this judgment.

1. “[T]he suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue ‘in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty’, and that ‘the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases’ seem to us well made.”

Comment: we are especially pleased to see the emphasis on the question of attempting to secure alternative accommodation e.g. a temporary ‘tolerated’ site or location elsewhere.

Lord Neuberger went on to consider the facts in the case of Mr Pinnock and concluded that, in the circumstances of that particular case, the making of the possession order was ‘proportionate’.

Conclusion

Though reference is made throughout the judgment in Pinnock to ‘local authorities’ it is clear that this decision has relevance to possession proceedings taken by all public authority landlords and landowners.

After ten years of argument on this point (i.e. ever since the Human Rights Act 1998 was brought into force in the United Kingdom in 2000), it now finally seems clear that a defendant in a possession action where the claimant appears to have an otherwise absolute right to a possession order, can raise article 8 as a defence. This will be extremely important, of course, for Gypsies and Travellers facing eviction from unauthorised encampments and also for Gypsies and Travellers facing eviction from local authority sites (until the Government finally brings the terms of the Mobile Homes Act 1983 into force on such sites – latest expected date being February 2011).

Chris Johnson of the Travellers Advice Team (TAT) at Community Law Partnership (CLP) and Marc Willers of Garden Court Chambers.

TAT operates a national telephone helpline for Gypsies and Travellers funded by Community Legal Advice. The number is 0845 120 2980 and the line is open Monday to Friday 9.00 am to 5.00 pm. For an informal chat with one of the Team, please phone CLP on 0121 685 8595.